A License to Kill Americans: No Judge, No Jury

Have you heard? George W. Bush and Dick Cheney are up to their old tricks.

It wasn’t so long ago that they cited congressional authorization for the war on terror, passed by Congress one week after September 11, 2001, to justify their use of rendition, torture and widespread wiretapping. Now Bush and Cheney are claiming that the same law gives them unlimited authority to use unmanned drones to kill American citizens overseas without a trial.

Gotcha! As much as Democrats might like to blame Bush and Cheney for America’s vastly expanded drone warfare, it’s not the previous occupants of the White House who are sending out the drones. It’s today’s. The Obama administration made its case for lethal use of drones in a white paper provided by the Justice Department to key members of Congress last summer and leaked this week to NBC News.

In its 16-page memo, the administration argues that targeting and killing American citizens suspected of belonging to a terrorist organization — based on secret evidence, with no due process, no trial, no judge, no jury — is permitted by law as long as an “informed, high-level official of the U.S. government” has determined that three conditions are met: the individual poses an “imminent” threat of violent attack against the United States; capture is infeasible; and the operation must be conducted in a manner consistent with existing war principles. At first glance, that seems reasonable. At second glance, it’s one of the scariest documents – and one of the boldest assertions of executive power — in our lifetimes.

The problem starts with the definition of “imminent.” That sounds like something “about to happen.” Not necessarily so. The DOJ memo states it “does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” In other words, wiping out a targeted person with a drone is justified as long as it’s believed the targeted person would support such an attack in the future. It also assumes the United States government would never make a mistake.

But the scariest part of the memo is the phrase: “an informed, high-level official of the U.S. government.” Just who are they talking about? Who has the power to override the due process clause of the Constitution? Who has the right to decide which Americans will be killed by a drone strike? Is it the president of the United States? Or does he delegate that decision to the director of the CIA? The secretary of defense? The national security advisor? Or some mid-level bureaucrat at CIA Headquarters?

The truth is, we don’t know. Despite requests by leading Democrats and Republicans in Congress, the administration refused until this week to release an internal memo outlining what guidelines it used, and what evidence it had, before killing Muslim cleric Anwar al-Awlaki, an American citizen, in September 2011. Like the Bush administration before them, the Obama White House still insists the executive branch has the sole authority under the law to operate in secret and bypass the Constitution, without involving the Congress or the courts.

Now, here’s what so maddening about that position: Nobody is suggesting that the use of drones be banned. Clearly, in some cases, drones are the weapon of choice. They beat putting boots on the ground. They’re less expensive, more efficient, and operate behind enemy lines with no risk of loss of life or limb (except for their targets). But the very fact that they’re so easy and so effective makes it all the more important that there be clear rules governing their deployment and clear authority to operate under international law.

Imagine what would happen if some other nation acquired a fleet of drones and started using them as killing machines. The United States would be the first to protest. Imagine if George W. Bush, not Barack Obama, were vastly expanding the use of drones. Liberals would be raising hell. They wouldn’t let Bush get away with it. They shouldn’t let Obama, either.

Yes, our enemies are still out to destroy us. And, yes, we have every right and duty to pursue and stop them. But that’s not a green light to trash the Constitution. As Americans, we must demand the same answers from President Obama about drones that we demanded from President Bush about torture.

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The host of TYT Network's nationally-syndicated Bill Press Show (Monday-Friday from 7-9am ET), Press attends the daily White House press briefing and writes a weekly column for the powerhouse politics website The Hill.